HomeMy WebLinkAboutL 11155 P 456 a 1�155PCQS�
7665
GRANT OF OPEN SPACE CONSERVATION EASEMENT
THIS GRANT OPEN MCI CONSERVATION EASEMENT, in made on the
�27day o , 1990 at Orient, New York. The parties
Uar LOYD E. RY, RI DA KLUGE PETREY and WALTER L. KLUGE, Main Road,
U Orient, New Yorh 11957 (herein called the "Grantor"), and THE PEOPLE OP THE
STATE Or NEW YOU, acting by and through, Thomas C. Jorling, their
Commissioner of Environmental Conservation who has an office at SO Wolf
Road, Albany, New York 12133-0001, (herein called the "Grantees"))
Q) INTRODUCTION
��// WHEREAS, the Grantor is the owner in fee of certain real property
hereinafter more fully described in EANIBIT A attached hereto, and
hereinafter referred to as the Protected Property) and
WHEREAS, the Protected Property in its present natural, scenic, open
space and wooded condition has substantial and significant value as a
natural, aesthetic, scientific, and educational resource by reason of the
fact that it has not been subject to any extensive development or
exploitation; and
WHEREAS, the Protected Property; which lies directly north of Orient
I Beach State Park and is seg&rated from it by Little Day, and lies between
other lands now owned by the State of New York; consists of wetlands
inventoried by t`:= New York State Department of Environmental Conservation
pursuant to the New York State Tidal Wetlands Act, said wetlands being
*Nalassified as intertidal marsh, high marsh, anA connected and buffering
I uplands of high quality; and
WHEREAS, the Protected property iC tneluded in +50+ acres of land
C oproppoosed to to be acquired by the New York State Department of
Environmental Conservation pursuant to Environmental Conservation Law (ECL)
action 3-0305 and the Eminent Domain Procedure Law (EDPL)1 and
WHEREAS, the Southold Town Trustees have designated portions of the
rotected Property and contiguous land around Little Say in Orient as a
f iticaI environmental area" under the provisions of the New York State
war tronmental Quality Review Act) (Artical 6 of ECL) and as implemented by
iulations contained at 4 NYCRR Part 4171 and
WHEREAS, New York States Coastal tons Management Plan has identified
g( the Little Bay area, including the Protected Property, to be an important
shell and finfish nursery area; and
If WHEREAS, the Little Hay area, including the Protected Property,
iespecies)
represents a significant habitat froquented by the osprey la threatened
and the diamond-back terrapin (a special concern species) as they
are identified under Section 11-0535 of the New York State Environmental
Conservation Law; and
WHEREAS, the Grantor wishes to maintain the Protected Property in its
current natural/open apace conditions and
WHEREAS, the Protected Property is part of a larger area of adjacent
farmland, open space, and wetlands which the Grantee is trying to protect
in its entirety) and
WHEREAS, the Grantor and the Grantee recognite the value and special
character of the region in which the Protected Prmr-rty is located, and the
Grantor and the Grantee have, in common, the purpose and objective of
protecting and conserving the present :tate and inherent, natural tang9ible
&nd intangible values of the Protected Property as a natural, aesthetic,
scientific and educational resource; and
WHEREAS, an Open Space Conservation Easement on the Protected Property
contributes to the larger goal of protecting the environmental integrity of
Long Beach Say and complements efforts of the New Y rk W� t of
1 i
76W REAt ESTATE
,
OCT 10 4sa
TRANSFER1AX
SUFrotK
Nnvironmental Conservation to accomplish samet and
WHBRRAS, the grantee has determined it to be desirable and benslioial
and has requested the Grantor, for itself and its successors
and assigns to grant an open Spann ^onservation Basement to the Grantee in
order to further restrict the development of the Protected Property while
permitting compatible uses thereof)
NOW, THERBtORM
0.01 Grantor's Warranty
Grantor Warrants and represents to the Grantee that Grantor is the
owner in fee simple of certain unimproved real property located in the
hamlet of orient, Town of Southold, Suffolk County, Now York, and
possesses the right to grant this Basement.
0.02 Grantee's Status
Grantee warrants and represents .to Grantor that Grantee is a
governmental entity qualified under Section 110 Ih) (3) of the Internal
Revenue Code of 1951, and any amendatory or suppl.� ^:..atal legislation
(herein called "*h*' codes") , established for purposes which include the
conservation and preservation of unique envirormwntal, scenic and natural
value of land within New York State.
8.03 purpose
The parties recognize the environniaata1, scenic and natural values of
the Protected property and have the common purpose of preserving these
values. This Grant is intended to convey an open Space Conservation
Easement on the protected Property by Grantor to Grantee, for the purpose
of preserving its open space character in perpetuity for environmental,
scenic and natural values, by preventing the use or development of the
Protected Property for any purpose or in any manner contrary to the
provisions herein, in furtherance of New Mork State conservation policies
clearly delineated by the New York Statutes.
0.04 Recitation
In consideration of the previously r4cited facts, mutual promises,
undertakings and forbearances contained in this Basement, and for good
and valuable consideration, the parties agree upon its provisions,
intending to be bound by it.
ARTICLE Oma
T"I sh
1.01 Type
This Grant convey» an Open Space Conservation Easement Sherein
called the "Basement") . The Easement shall consists of the convenants,
restrictions, rights, terms, and conditions recited in this Grant.
Reference to "the Basement" or its "provisions" in this Grant shall include
, any and all of those covenants, restrictions, rights, terms and conditions.
1.02 Duration
This Easement shall be a burden upon avid run with the property in
perpetuity.
1.03 Effect
The Basement shall run with the Protected Property as an incorporeal
interest in the Protected Property, enforceable against Grantor, Grantor's
agents, tenants, heirs, personal representatives, successors and assigns,
and all other individual and entities.
T,
2
ANTICLO TWO
PROHIDITSD ACTS
from and after the date of this Basement, the following acts, uses and
practices shall be prohibited forever upon or within the Protected
Property.
1.01 Structures
The construction or placement of buildings, structures (except for
water level regulation works) or improvements of any kind or nature.
Including, but not limited to, roads, mobile homes, antennae and satellite
dishes, permanent or temporary, or, over or under the Protected Vtt;erty
except as specifically permitted herein.
2.02 ;xcav^tion and Removal of Materials
The dredging, excavating, mining or filling of the protected
Property. The removal of topsoil, sand, or other materials shall not take
place on the Protected Property nor shall the topograpby of the Protected
Property be changed. Such activities may be allowed, however, in accordance
with sound management practices designed torotect, maintain or enhance
the netural qualities of the Halluck's Day tidal wetland resource, as
determined by the Grantee, provided all applicable federal, State, and
local laws and regulations are met, Subject to the reserved right of the
Grantor,their heirs, successors and assigns, to repair, protect and
maintain the earthen dike on the protected property for no long as adjacent
remaining lands of the Grantor shall be wholly or partially used for
agricultural purposes.
2.03 Subdivision
The subdivision or partitioning of the Protected property.
2.04 Cutting of Timber
The cutting or harvesting of timber except for the following
purposest
a) to clear and restore forest cover that has been damaged or disturbed
by lotces of nature or otherwise, and b) to prune and selectively thin
trees in accordance with sound and accepted forest management practices as
determined by the Grantee and c) to cut and remove firewood for the
personal residential use of Lloyd D. Terry and his heirs for so long as he
or they retain fee ownership of the adjacent lands.
2.04 Dumping
The dumping or accumulation of trash garbage sawdust, ashes,
chemical waste or other unsightly or offens1ve material on the Protected
Property.
2.06 signs
The display of signs, billboards, or advertisements on the Protected
Property except signs, whose placement, number, and design do not
significantly diminish the scenic character of the Protected Property and
only for the following purposes a) to state the name of the protected
Property and the names and addresses of the occupants, b) temporarily to
advertise the Protected property or any portion thereof for sale or rent,
and 0 to post the Protected Property to control unauthorised entry or use,
in accordance with applicable provisions of law.
2.07 Landscaping Activities
The removal of trees, shrubs, or other vegetation from the Protected
Property, except as provided by Section 2.04, 3.06 and 3.05.
3
7.06 Utillty Lines
The creation my placement of utility transmission lines, utility
poles, or wires or other utility facilities on the Protected Property
except with the Grantee's prior written consent, or in accordance with
Section 49-0307 of the New York State Environmental Conservation Law.
2.09 uses
The use of the protected property for any commercial, industrial, or
residential purpose except as may be specifically permitted by a provision
of this Basement.
ARTICLE TWEE
gRANTOIt'B RIGHTS
3.01 ownership
Subject to this Easement, Grantor shall retain all other customary
rights of ownership in *his Protected property, some of which are more
particularly described in this ARTiCLs THREE,
3.02 Poaaession
Grantor shall continue to have the right to exclusive possession of
the Protected Property.
3.03 Use
Grantor shall have the right to use the Protected Property in any
manner and for any purpose consistent with and not prohibited by the
Easement as well an applicable New York state law and which would not
defeat at derogate from the purpose at the Basement.
3.04 Landscaping Activities
Grantor shall have the right to continue the historical modes of
landscaping, pruning, and grounds maintenance of the protected Property,
provided that non-native tidal wetland plant species shall not be
introduced on the Protected Property. With Grantee's written consent, '
Grantor shall have the right to remove tress, shrubs, or other vegetation
when dead, diseased, or dangerously decayed.
3.O5 Pirewood Cutting
Lloyd E. Terry, one of the grantors herein, and his heir■ shall have
the right to out and remove firewood for personal residential use for so
long AA he or his heirs retains the fee ownership of the lands adjacent to
the lands described in Exhibit A attached. Such right shall not be subject
to the consent provision at 3.04.
3.06 boat Basin and Dike Maintenance
Lloyd E. Terry, one of the grantors herein, his heirsand assigns
shall have the Light to use, operate, repair, protect and maintain in the
,same condition as shown and described in the Report of Physical Inspection,
made March 15, 1990, but not improve or expand, the earthen dike and boat
basin located on the premises described in Exhibit A attached. This right
shall remain in effect for so long as the lands now owned by Lloyd E. Terry
adjacent to the premises described in Exhibit A are wholly or partially
used for agricultural purposes and practices as the same are defined in the
Agricultural ` Markets Law. PROVIDED, however, that nothing herein
contained shall be construed as relieving the one (s) to whom this right is
reserved, of the obligation of securing all necessary approvals of any
governmental agency having jurisdiction, including the New York State
Department of Environmental Conservation pursuant to Article 25 of the
Environmental Conservation Law.
11155P�458
3.07 Vatice
Grantor snail notify Grantee, in writing, before taking any action
pursuant to the terms of Section 2.01 or 2.04 of tris easement, or before
exercising any reserved right pursuant to the terms of Section 3.03, or
3.04 of this Basement, with respect to the Protected property, or any
other reserved right which could adversely offset the conservation purposes
which are the subject of this Basement.
3.O8 Alienability
Grantor shall have the right to convey or lease the Protected
Property but only subject to this Basement. Grantor shallpromptly notify
Grantee of any conveyance of any Interest in the Property, including the
full names and mailing addresses of all Grantees, and the individual
principals thereof, under any such conveyance. The instrument of any such
conveyance shall specifically set forth that the interest hereby conveyed
is subject to this Basement, without modification or amendment of the
terms of thin Basement, and shall incorporate this Basement by reference,
@pacifically setting forth the date, office, liber and page of the
recording hereof. The failure of any such instrument to comply with the
provisions hereof shall net affect Grantee's rights hereunder.
ARTICLB FOUR
GAA MRIB OBLIGATIONS
4.01 Maintenance
Grantor, at Grantor's sole cost and expense, shall continue to
maintain the Protected Property in the same physical condition as it is on
the date of, and iii conformance with, this Basement.
4.07 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and
other governmental or municipal charges which may become a lien on the
Protected Property, including any tax•: Jr levies imposed to make those
payments. ,
ARTICLB FIVB
INDBNNIFICATION
5.01 Indemiifieation by Grantee
The Grantee, for itself and its successorsand assigns agrees to
Indemnify and hold the Grantor harmless against claims, loss, damage and
expense the Grantor may suffer as a result of the Grantee's negligence in
property constructing, maintaining, repairing, replacing or managing any
recreational amenities and actionable conduct of the Grantee as permitted
by the Court of Claims Act and Section 17 of the public officers Law.
5.02 Grantors obligations
The duty to indemnify and save harmless presecribed by this paragraph
shall be conditioned upon 1i) delivery to the Attorney General by the
Grantor of the original or a copy of any summons, eom faint, process,
notice, demand or pleading within five days atter, it is served with such
document, 111) representation by the Attorney General or representation by
private counsel of Grantor's choice, subject to the approval of the
Attorney General, whenever the Attorney General determine• in his sole
discretion based upon his investigation and review of the facts and
circumstances of the coal that representation by the Attorney General would
be inappropirate, and (iii) the full cooperation of the Grantor in the
defense of such action or proceeding and in dofo"+e of any action or
proceeding against the Grantee based upon the same act or omission, and in
the prosecution of any appeal."
5
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11155PA59
ARTICLE six
GRANTEE'S RIGHTS
6.01 Entry for Inspection Purposes
Grantee shall have the right to enter upon the Protected Property at
reasonable times, upon reasonable prior notice to Grantor, and in a manner
that will not interfere with the Grantor's quiet use and enjoyment of the
Protected Property, for the purpose of Inspection to determine whether the
Easement and its purposes and provisions are being upheld, and for purposes
of scientific research such as collection of data and the placement and
monitoring of resource sampling and data collecting equipment.
6.02 Access
a.) Public Access. This Easement grants, and shall be interpreted to
grant, to the public the right to enter upon the Protected Property, as
permitted by the Grantee in accordance with its rules and regulations.
b.) Administrative Access. The Grantee may enter upon the Protected
Property in order to protect, maintain of enhance the natural qualities of
the Halloek's Bay tidal wetland resource. such activities may include, but
are not limited to, the clean-up of pollutants from adjacent waters or
upland point or non-point sources, the protection of the wetlands from such
pollutants or the prot:ction of indigenous bird, fish, mammal or botanical
populations. Upon the completion of any such activities, the Grantee shall
leave the Protected Property in its natural condition and shall remove any
equipment or supplies or materials brought onto the Protected Property.
4.03 Enforcement Rights of Grantee
In the event of a breach of any of the covenants, restrictions,
terms or conditions of this easement, the Grantee shall notify the Grantor,
or its successors or assigns, of any such breach. such notification shall
be in writing, addressed to the Grantor at its address as stated herein, or
any other address provided by the Grantor or Ito successors or assigns, and
sent by registered or certified mail, return receipt requested. The
Grantor upon receipt of such notification shall promptly cure the breach by
la) ceasing the proscribed activity or conduct and Ib) restoring the
Protected Property to the natural state in which it existed immediately ,
preced!ng the breach. The portion agree that, ti►u statural state of the
Protected Properly as documented by the inspection by the Grantee moat
recentlyreceding the breach shall be the natural state of the Protected
Property immediately preceding the breach. The obligation of the Grantor
to restore the property to such natural state shall include, as determined
by the Grantee, the repair or replacement of previous man-made alterations
to the Protected Property or the carrying out of further man-made
alterations as is necessary for the purpose of stopping or remedying
environmental harm resulting from the breach in question.
The Grantor acknowledges that this easement, and all of its
terms, conditions, covenants and restrictions may no enforced by the
Grantee, and its successors, by any actions or proceeding, at law or in
equity, as the Grantee, or its successors, may eleeti provided, however,
that the Grantee may not commence any such action or proceeding prior to
the expiration of thirty (30) days after the delivery of the notice herein
referred to.
it is understood and agreed by the parties hereto that the
Grantor, its successors and assigns shall not be liable for any changes to
the Protected Property caused by any natural disaster or act of god.
6.01 No Waiver
Grantee's exercise of one remedy or relief under this AR'PICLE SIX
shall not have the offset of waiving or i1miting any other remedy or
relief, and the failure to exercise or delay in exercising any remedy shall
not have the effect of waiving or limiting the use of any other remedy or
relief or the use of any such remedy ox relief at any other time,
6
.� RI
111=460
ARTICLE 5WM
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easament and
superseded by it.
7.01 Amendment
This Easement can be terminated or modified only in accordance with
the can and statutory law of the state of Now York applicable to the
termination and modification of Easements and covenants running with the
land. Grantor and Grantee recognize that eirem nstances could arise which
would justify the modification of certain of the restrictions contained in
this Easement. To this end, Grantee and Grantor shall mutually have the
right, in their sole discretion, to agree tn amendments to this Easement
which are not Inconsistent with the basic purpose of the Easement set forth
in Section 1 hereufl provided, however, that Grantee shall have no right or
power to agree to any amendments hereto that would result in this Easement
failing to qualify as a valid conservation Easement under Article 49, Title
3 of the Environmental Conservation Law of the State of New York, as the
same may be hereafter amended, any regulation New York, as the same may be
hereafter amended, any regulation issued pursuant thereto, or Section
170(h) of the Internal Revenue Code governing "Qualified Conservation
contributions."
7.03 Severability
Any provision of this Basement, restricting Grantor's activities,
which is determined to be invalid or unenforceable by a court, shall not be
invalidated. instead, that provision shall be reduced or limited to
whatever extent that court determines will make it enforceable and
effective. Any other provision of this Basement which in determined to be
invalid or unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.04 Notice 1
All notices required by this Easement must be written. Notices shall
be given either by manual delivery or by mailing in a mail receptacle
maintained by the United States postal Service. Mailed notice must be
contained in a accurately addressed, sealed snvaleps, marked for delivery
by first class registered or eertificd mail, with sufficient prepaid
postage affixed and with return receipt requested. Mailed notice to
Grantor shall be addressed to Grantor's address as recited herein, or to
such other address as Grantor may designate by notice in accordance with
this Section 7.04. Mailed notice to Grantee shall be addressed New York
State Department of Environmental Conservation, building 10, SUNY, Stony
Brook, New York 11790-1356, marked for the attention of Marine Resources,
, or such other address as Grantee May furnish. Notice shall be deemed given
and received an of the date of its manual delivery or the date of its
mailing.
7.03 Governing Law
New York law applicable to deeds and conservation Basements
pertaining to land located within New York shall govern this Basement in
all respects, including validity, construction, interpretation, breach,
violation and performance.
7.O6 interpretation
Regardless of any contrary rule of construction, no provision of this
Basement shall be construed in favor of one of the parties because it was
drafted by the other party's attorney. No alleged ambiguity in this
Basement shall be construed against the party wbn..p attorney drafted. It
any provision of this Basement is ^mbiguous or shall be subject to two or
7
more interpretations, one of which would tender that provision invalid,
then that -provision shall be given such interpretation as would render it
valid and be consistent with the purposes of this Basement as intended by
Grantor. Any rule of strict construction designated to limit the breadth
of the restrictions on use of the Protected Property shall not apply in the
construction or interpretation of this Basement, and, this Basement shall
be interpreted broadly to effect the purposes of the Casement as intended
by Grantor. The parties intend that the Basement, which in by nature and
character primarily negative in that Grantor has restricted and limited
Grantor's right to use the Protected Property, except as otherwise recited
herein, bt construed at all times and by all parties to effectuate its
purposes.
7.07 warranties
The warranties and representation made by the parties in this
Basement shall survive its execution.
7.01 Binding
The covenants, terms, conditions restrictions and purposes of this
Easement with the exception of the personal right of Lloyd t. Terry and his
heirs to cut firewood as provided in Section 3.O5 above, shall run with the
Protected Property, and shall bind the successors +end assigns of each of
the parties respectively. This Basement shall extend to and be binding
upon grantor, Grantor's agents tenants, heirs, personal representatives,
successors and assigns. Any rights, obligations, and interests herein
granted to Grantee shall also be deemed granted to each of its og'nts,
successors, and assigns and each such following successor and assign, and
the word "grantee" when used herein shall include all of those persons s►r
entities.
7.09 Recovding
Grantee shall have the right to record this Basement at any time
without notice to Grantor.
7.10 Readings
The headings, titles and subtitles herein have been inserted solely
for convenient reference, and shall be ignored in its construction. ,
7.11 Physical Inspection
The Grantor and Grantee agree that the Now York Rate Department of
environmental Conservation Map number 10616 and "Report of Physical
Inspection" of the protected property accurately and completely describe
the natural, scenic, open space and wooded condition of the Protected
Property on the date hereof and may be used for that purpose by either
party hereto in any subsequent action or proceeding hereunder. A copy of
said map is to be filed in the Office of the Suffolk County Clark
simultaneously with the reoording of this indenture. tach party has been
furnished a copy of said map and Rieport of physical Inspection, dated
3/15/90.
e
1115
0462
IN NITNBSS WHARROT, grantor has executed and delivered and Grantee has � .
accepted and received this Deed of Open apace Conservation Bassment on the
day and year met forth above.
LMYD 5TIMRY
WALTIR L. Ufl
1 ✓
rRINDA GH PItTRZY
cantors
NIRW YORK ST TS D PAR ENT OF BNVIROWNWAL CONSERVATION
BYt
LANH, E BB 0M
STATE OF MW YORK 1
COUNTY 0%4
On is a , o '�eed
1990, before me personally apppeeared
me known and known to me to be the
tanto ment one an rin, and who executed the foregoing
instrumOnt, and he/sh duly acknowledge to me than he/she executed the
same I ,
o .ary Vublic
rAtlu 1W sa�r nu
11 I"Ied In8 r��t� r
suns or ► Wl'$0/9 Y
ss. .
COUNTY OF 4�—•e. 1
this U ay f 1990, before me personally appeared
tD me known and known to me to be the
014ntor*montioned anMesoribed in, and who executed the foregoing
Instrument, and he/she duly acknowledge to ma that he/she executed the
same.
Dta c
H'toy IeWk,Stott of WWI
yN Kai.,.:oleo Exrlre+lone 71,S9M
e..�.r nn.,i,q Ain•M,w..0 bN
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9
l�l�gti3 ,
STATA Al NEW wax )
COUNTY 0 }
O�. �t is;=Af
1990, before me personally appeared
to me known and known to me to be the
03 tioned antV AbsoriF4A in, and who executed the foregoing
instrument, and he/she duly acknowledge to me that he/she executed the
same. .
Notary Public
'ATaIrIA R rRl PNSK!
Puy, ,aw York
IIII 'A.n audolk C011f11�
STATE 0? Naw YORK )
COUNTY Op '46AW1 )
On this /3 4 day o! , 1990, before me personally came Langdon
Marsh to me known, c e ngme duly sworn, did depose and may that he
resides at ALTA oK•- N and is the Executive Deputy
Commissioner of the Now "fork State Department of Lr'rironmental
Conservation, and that he executed the foregoing on behalf of the New York
State Department of Environmental Conservation pursuant to authority of law
duly delegated.
No ry Public
so
a ou�ur�
M►OMsirw t�Nn��►9! f
1
10
»�55Fb4�4
RKilISIT "71"
DIOCRIPTION Of AROTRCTiiD PROARTi ..
All that certain piece, parcel at tract of land lying and being
situat# at Orient, in the Town of Southold, County of Buffolk, State of New
York.
being more particularly bounded and described an follows►
99GINNING at a point in the division line of land now or formerly of
Anna T. Droskoski and land now or formerly of Lloyd E. Terry, said point
being S 01" 36' 17" W, 50.00 feet from a granite monument in the division
line between iand now or formerly of Diana Latham and land of Lloyd L.
Torryl running thence along said division line S 01" 361 1711 W, 528.35 feet
to the general line of mean high water of Long Beach Bay, as of !'ebruary
25, 19881 running thence westerly along the general line of mean high water
of Long Beach say, the following two 92) tie line courses and distaneeso
1. N 76" 43' 03" W. 165.67 feet
2. 8 77" 04' 15" W. 57.34 feeto runningq thence through land
of Lloyd I. Terry the following four 14) courses and distancest
1. N 02" 30' 00" W. 148.94 feet
:. N 87" 30' 00" E. 140.00 feet
9. N 02" 30, 00" W. 346.06 feet
N�4..N 8 69" 00' 5001' i2. 133.13 feet to the point and place of
�oG2 1o00Q� sect Hl cr% of Part fagq Lot �O ors or less. District
11
11155P;465
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